Yes, thanks Bill, it is a very interesting decision. As Ken says, it was rightly treated by the judge as a case on the correct interpretation of the 1976 Act, even though the argument on both sides seems to have strayed off that question at times (eg, the defendant’s argument that ‘the Defendant cannot owe the Claimant a duty of care to prevent her coming into existence’, which is surely irrelevant if the claim falls within the Act, as s 1 deliberately bypasses the question of a duty being owed to the child by making the child’s claim parasitic on the duty owed to the parent). McKay also seems to me to have been irrelevant, except insofar as it assisted in the process of statutory interpretation.

 

Just to be clear, though, Lambert J is not only saying that the Act doesn’t bar the claim, but (as I read her judgment) that the Act means there is a claim. Hence the conclusion that ‘I therefore find that the Claimant in this case has a lawful claim for damages for personal injury arising from her disability’. While that conclusion is based on the assumption that there was breach and causation, the only dispute I can see arising on causation would be about whether in fact folic acid would have prevented the disability, or something of that sort. More fundamental questions (such as whether the child suffered damage) are resolved by the Act itself. As Bill points out, the defendant apparently argued that ‘this is a claim in which the injury alleged is not the Claimant’s disability but the fact of her existence’, but if the case falls within the Act the damage is the disability, full stop (see s 1(1): ‘… the child’s disabilities are to be regarded as damage resulting from the [the defendant’s wrongful act] and actionable accordingly at the suit of the child’).

 

If the case does go on appeal, then it seems to me that the argument should be limited to the meaning of the 1976 Act, and in particular Lambert J’s interpretation of the word ‘occurrence’. On that point, the judgment is very clear and considered, but I would say there is some scope for challenge. However, the other issues raised by the defendant were a distraction, and the decision is of limited relevance to the broader ‘wrongful life’ issue.

 

All best

 

Donal

 

 

 

From: Ken Oliphant <lwkao@bristol.ac.uk>
Sent: 25 January 2021 07:57
To: Bill Madden <m.bill.madden@gmail.com>; ODG list <obligations@uwo.ca>
Subject: Re: Toombes v Mitchell [2020] EWHC 3506 (QB)

 

Interesting case, thank for drawing it to our attention Bill. It was about the correct interpretation of s 1 of the 1976 Act, and in particular as to whether this was indeed a case of wrongful life that the Act precludes. (Answer no, as the negligence was pre-conception.) This preliminary issue was decided on facts agreed for the purposes of this hearing, but presumably remaining to be established in further proceedings. So causation hasn't in fact been resolved here yet, at least so far as I can tell on a quick reading of the judgment.

 

Cheers
Ken

---

From: Bill Madden <m.bill.madden@gmail.com>
Sent: 24 January 2021 23:50
To: ODG list <obligations@uwo.ca>
Subject: Toombes v Mitchell [2020] EWHC 3506 (QB)

 

Dear All

 

I thought it might be worth mentioning this "preliminary issue" decision, if only as it seems likely to require consideration by an appellate court in the near future as a potential wrongful life claim. It was not disputed that a wrongful birth claim could have been brought by the mother.

 

The claimant was born with a congenital developmental defect (spinal cord tethering).  That was alleged to have arisen from her mother's failure to take folic acid before her conception, said to be due to negligent advice on the part of the defendant (a general practitioner).

 

The defendant's argument was explained by the primary judge at [3], 

 

The facts which have been agreed include that, but for the breach of duty, the Claimant would not have been conceived. The Defendant therefore submits that this is a claim in which the injury alleged is not the Claimant’s disability but the fact of her existence. It is the Defendant’s case that the action is one of “wrongful life”,….  

 

The primary judge discussed the legislative framework (Congenital Disabilities (Civil Liability) Act 1976) and discussed  McKay v Essex Area Health Authority [1982] 2 All ER 771  before concluding that the claimant child had a lawful claim for damages for personal injury arising from her disability. 

 

The decision of McKay is unfortunately rather brief and it is not clear (to me at least) how the causation issue was resolved in favour of this particular child claimant, given that advice about folic acid would seem to have required a delay in conception and therefore the birth of a 'different' child, at least in a genetic sense. But perhaps I am missing something.

 

Here is the link to the decision on BAILII.

 

https://www.bailii.org/ew/cases/EWHC/QB/2020/3506.html 

 

Regards

Bill Madden

Sydney Australia.